Nearly a dozen civil liberties organizations have accused Congressman Adam Schiff and other Democratic leaders of purposely undermining the online privacy of U.S. citizens and immigrants; possibly in an effort, they say, to conceal the unlawful surveillance of Americans’ web browsing activity by the FBI’s national security branch.
In a letter on Wednesday addressed to top Democrats and Republicans, a coalition of left- and right-leaning advocacy groups said that “alarming statements and actions” by leaders of the House and Senate intelligence committees have prompted concerns about potential “unauthorized dragnet surveillance of people in the United States,” which may have relied on authorities that expired this March amid debate over the use of roving wiretaps and other key surveillance tools authorized under FISA, the Foreign Intelligence Surveillance Act.
“Throughout the 2020 debate in Congress about whether and how to reauthorize these authorities, activity by the House and Senate intelligence committees has spurred critical questions as to what surveillance of people in the United States occurred under Section 215 [of the Patriot Act] and may still be occurring despite the sunset of these authorities, on the basis of secret claims of inherent executive power or through the misuse of other authorities,” the letter reads.
In May, Democrats engaged in closed-door negotiations over a proposed amendment aimed at shielding U.S. residents who are not suspected of violating the law from having their search and web browsing histories seized by the FBI without a warrant. Democratic and Republican sources on Capitol Hill told Gizmodo that the efforts were continually hindered by top Democrats, including Schiff, the chairman of the House Intelligence Committee, and House Speaker Nancy Pelosi, a former and ex-officio committee member.
Sen. Ron Wyden, a noted privacy hawk who also serves on intelligence, initially supported an amendment negotiated in May between Schiff and Rep. Zoe Lofgren, who has long fought to equip Americans with stronger digital protections against surveillance. Lofgren’s office said the negotiated language would prohibit federal agents from acquiring lists of everyone who had visited a particular website without a warrant unless they could “guarantee” Americans’ internet records were not included. But Schiff publicly disagreed, leading Wyden to pull his support.
“It is now clear that there is no agreement with the House Intelligence Committee to enact true protections for Americans’ rights against dragnet collection of online activity,” Wyden said.
Sources with knowledge of the secret meetings said that months-long efforts to introduce privacy reforms were undermined at nearly every juncture by the “national security Democrats” in control of the party. A critical vote in February was abruptly canceled, for instance, to stop a pro-privacy amendment from being attached to the FISA reauthorization bill. The bill itself was effectively shelved by Pelosi in June in an apparent effort to stymie bipartisan calls for reform.
Democrats and Republicans who supported the privacy enhancements contend they did have the votes to pass the amendment, due in part to the White House’s nebulous position on the matter. President Donald Trump at one point threatened to veto the reauthorization package because, he claimed, FISA had been abused to monitor members of his 2016 presidential campaign. The sources said many Republican lawmakers who lean libertarian felt the president’s allegations had freed them up to vote to curtail the FBI’s power.
Sean Vitka, senior policy counsel at Demand Progress, one of 11 groups to sign Wednesday’s letter, said he believed Schiff had essentially “sold out Dreamers”—undocumented residents who arrived in the U.S. as minors—during the negotiations by attempting to limit any potential protections to U.S. citizens alone. “That’s bad enough on its own,” he said, “but we have reason to fear he did it to allow for domestic surveillance of everybody.”
Wednesday’s letter raising concerns about the potential dragnet collection of Americans’ web activity received support from Americans for Prosperity, FreedomWorks, Demand Progress Education Fund, Project for Privacy and Surveillance, Defending Rights & Dissent, Accountability (PPSA), Due Process Institute, Restore the Fourth, Fight for the Future, X-Lab, and Free Press Action.
The civil liberties groups said statements by intelligence committee lawmakers suggest that the FBI may have used Section 215 of the Patriot Act to collect enormous amounts of data that details when U.S. residents and others visited specific websites or downloaded specific pieces of content. Statements by Schiff, in particular, they said, “suggests the government may have secretly contorted the law to justify dragnet surveillance of the internet activity of people in the United States, regardless of their United States personhood.”
A Schiff spokesperson did not respond to a request for comment.
Such actions by the government would be classified at the highest levels and known only to select lawmakers who serve in an intelligence-oversight capacity. If the FBI has used the oft-abused Section 215 authority to order tech companies to surrender logs that show which websites Americans have visited, lawmakers who know would be prohibited from discussing it publicly.
The groups also fear that President Trump and Attorney General William Barr—the latter of whom launched a massive, illegal domestic surveillance operation in the 1990s, during his previous tenure as attorney general—may believe the FBI does not actually require congressional approval to conduct mass surveillance of domestic internet records. The letter notes that in March, Senator Richard Burr, then-chairman of the Senate Intelligence Committee, remarked that Trump could continue surveillance operations, even though the statute authorizing them had expired—“without Congress’s approval.”
In a letter to Barr and Director of National Intelligence John Ratcliffe last month, Senators Patrick Leahy and Mike Lee wrote that the “executive branch has tenuously relied on Executive Order 12333, issued in 1981, to conduct surveillance operations wholly independent of any statutory authority.” The senators said that because the FISA reauthorization bill had failed to pass, they are now concerned the U.S. government might be continuing to collect that intelligence absent congressional approval. “This would constitute a system of surveillance with no congressional oversight potentially resulting in programmatic Fourth Amendment violations at tremendous scale,” they wrote, saying: “We strongly believe that such reliance on Executive Order 12333 would be plainly illegal.”
Added Lee and Leahy: “Congress and the American people have a right to know if this or any other administration is spying on people in the United States outside of express congressional approval, with no or diminished guardrails.”
Update, Aug 6: Rep. Warren Davidson, Republican of Ohio, sent the following statement:
“I completely agree with the coalition’s letter. I have numerous concerns about ongoing surveillance, especially given Rep. Schiff’s assertions. Congress and the American people have a right to know the extent of the surveillance the government is conducting, especially if good-faith efforts to reform those authorities are undermined by unconstitutional actions on the part of the intelligence community.”
The groups’ letter is below.